Rule 5A:8(c)’s written statement of facts is one of the absolute nightmares of Virginia appellate practice.
The underlying notion seems simple enough: If an important hearing or trial took place but there’s no transcript, the appellate court needs something to review; otherwise, it’s just going to affirm, because the trial court’s judgment is presumptively correct. So Rule 5A:8 lets the appellant draft and file a written statement of facts, testimony, and other incidents of the case within 60 days of final judgment. When the appellant serves the other parties, it also provides notice that they will present the statement to the trial judge no earlier than 15 days nor later than 20 days after filing. When that happens, and when the trial judge signs the statement, it becomes part of the record. The rules, of course, allow the appellee to object. If they do, they judge has to resolve the objections. On the other hand, if the statement is signed by counsel for all parties, “the judge may sign the statement forthwith upon its presentation to him . . ..” (That “him” hasn’t aged well.)
By this point, you probably see the potential for mischief; any number of steps are outside the appellant’s control. I mean, what if . . .
- The clerk’s office rejects the initial filing of the written statement because it is not signed by the judge?
- Chambers insists that the trial judge does not have any available dates within 15-20 days of filing?
- Nobody really disputes what happened, but opposing counsel won’t cooperate or insists on a bunch of silly changes to the document before they sign?
- Despite the appellant’s best efforts, the judge just does not sign the written statement?
This stuff really matters. If you should happen by the CAV’s unpublished opinions page, you will see that they kill a healthy number of appeals every month for lack of a transcript or written statement.
Thankfully, the CAV has at least a partial fix: Under Proctor v. Town of Colonial Beach, 15 Va. App. 608 (1993), if an appellant has complied with the first two elements of Rule 5A:8(c)–that is, if she has timely filed a written statement and provided opposing counsel notice that it will be presented within 15-20 days–then she has established prima facie compliance with the rule. The trial court must then sign or correct the written statement or, in a really extreme case, order a new trial.
But in all events, the CAV will not dismiss an appeal once the appellant has established prima facie compliance. Instead, it will remand the case to the trial judge for appropriate action under Rule 5A:8(c)(2) or (d). The CAV explained that Rule 5A:8 is supposed to ensure a complete record, not let a trial court thwart an appeal:
The requirement that the trial judge sign the statement of facts is designed to ensure an accurate and complete statement of the facts and procedural history of the proceeding in the trial court. This requirement does not provide a means by which the trial judge, through design, inattention or inadvertence, may thwart an appeal by neglecting or refusing to sign the statement of facts.
Proctor is still good law. The CAV cited it in an unpublished per curiam opinion earlier this week.
- Just hire a court reporter in the first place! If something is important enough to merit a hearing, then the hearing merits a court reporter. Saving the court-reporter fee is the worst kind of false economy now that we have appeals of right, because someone more expensive than a court reporter is going to have to go back and reconstruct what happened in a written statement.
- Read and comply with Rule 5A:8 . . . especially that bit about notice.
- File the notice! In fact, make a record memorializing all your efforts to get the trial judge to do the right thing.
- And remember that the deadlines are part of the rule.